When Europeans first arrived on North America’s shores, there was present a great variety of indigenous peoples already governing themselves and their territories according to their own political institutions and laws. As Britain began to assert sovereignty over what later became Canada, as elsewhere, it was content – and indeed was committed by Imperial policy and law - to leave indigenous peoples to govern themselves and their territories largely as their forefathers had. But as the modern Canadian state took shape, it increasingly superimposed its political institutions and laws on indigenous peoples and their territories in disregard not only of indigenous peoples, territories, political institutions, and laws but also of the earlier tradition of political and legal pluralism. Canada’s enactment of the Constitution Act, 1982 – and particularly Section 35 which raised the aboriginal rights of aboriginal peoples to constitutional status - promised a reversal of the damaging effects of Canada’s colonialism. Despite its almost three decade old promise, Canada has not yielded significant constitutional space to indigenous peoples, political institutions and laws. In this paper, I explain why meaningful indigenous political and legal pluralism remains a distant dream. I do so by way of analysis of the Supreme Court of Canada’s aboriginal rights jurisprudence. My chief thesis is that indigenous political and legal pluralism remains a distant dream because of the Supreme Court of Canada’s discriminatory focus on indigenous people’s aboriginality and cultural difference to the near exclusion of their peoplehood and the constitutive commonalities they share with non-indigenous peoples.

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First Nations Sacred Sites in Canada's Courts

UBC Press, 2005

"I know of no other book that even attempts to do what Michael Ross's very careful and intelligent legal analysis accomplishes here. Ross's arguments are logically presented and clear, and he makes an important contribution to the literature."

– Peter Russell, Professor Emeritus in Political Science, University of Toronto

*First Nations Sacred Sites in Canada's Courts was shortlisted for the Third Annual George Ryga Award for Social Awareness in Literature (2005).

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About the Book

The sacred sites of indigenous peoples are under increasing threat worldwide as a result of state appropriation of control over ancestral territories, coupled with insatiable demands on lands, waters, and natural resources. Yet because they spiritually anchor indigenous peoples’ relationship with the land, they are crucial to these peoples’ existence, survival, and well-being. Thus, threats to sacred sites are effectively threats to indigenous peoples themselves.

In recent decades, First Nations peoples of Canada, like other indigenous peoples, have faced hard choices. Sometimes, they have chosen to grieve in private over the desecration and even destruction of their sacred sites. At other times, they have mounted public protests, ranging from public information campaigns to on-the-ground resistance. Of late, they have also taken their fight to the courts.

First Nations Sacred Sites in Canada’s Courts is the first work to examine how the courts have responded. Informed by elements of a general theory of sacred sites and supported by a thorough analysis of nearly a dozen cases, the book demonstrates not merely that the courts have failed to treat First Nations sacred sites fairly but also why they have failed to do so. The book does not end on a wholly critical note, however, but suggests practical ways in which courts can improve their handling of the issues. Finally, it shows that Canada too has something profound at stake in the struggle of First Nations peoples for their sacred sites.